174 Cards in this Set

"the streets are proper places for expressing opinion and spreading info and govts could regulate such expression in the streets as long as they do not unduly burden speakers."

Why did the ad in New York Times Co. v. Sullivan (1964) receive constitutional protection?

said the first amendment protected the ad's political message

What principle did the Pittsburgh Press case (1973) stand for?

there might be some first amendment protection for an advertisement for an ordinary commercial proposal not tainted by illegality.pointed out that commercial advertising enjoys a degree of first amendment protection
because the ad had informational and political elements to it, the court did not or could not address the issue of protection for other, more purely commercial types of advertisements.

What did the Supreme Court recognize for the first time in the Virginia State Board of Pharmacy case (1976)? What was its decision?

first amendment protects purely commercial speech

What was the court's reasoning in coming to this decision?

# Note that this decision was based more in the right to receive information than the right to speak.if "a consumer's interest in commercial information 'may bee as keen, if not keener by far, than his interest in the day's most urgent political debate." Also purely commercial speech contribues to public decision-making in a democracy.

Despite this ruling, is government still free to regulate ads that are false, misleading, deceptive, or that promote illegal products or services?

yes

What are the commonsense differences between commercial speech and other protected types of speech that makes government regulation of untruthful commercial speech tolerable?

1)advertisers may easily verify their commercial speech because they disseminate info about a product or service they provide and, therefore, know more about it than anyone else
2)commercial speech is so much hardier than other t ypes of speech because it's so necessary for generating profits that regulation would not chill an advertiser's speech.

What is the 4-part Central Hudson Test for determining whether a regulation on commercial speech is constitutional?

1)Is the ad accurate, and does it advertise legal product or service?
2)Is the asserted governmental interest substantial?
3)Does the regulation directly advance the governmental interest?
4)Is the regulation no more extensive than necessary to serve the governmental interest?

Is the 4th prong of the Central Hudson Test interpreted by the courts to mean "the least restrictive means possible" or "a reasonable" (narrowly tailored) fit?

Narrowly tailored.

Must government provide proof to support claims that regulations satisfy the Central Hudson Test?

Yes

What was the Supreme Court's rationale in Edenfield v. Fane

No studies suggested personal solicitation of prospective business clients by CPAs creates the dangers of fraud, overreaching

What was the Supreme Court's rationale in Florida Bar v. Went For It Inc

Public opinion study to keep attorneys from using direct mail advertising 30 days after death/accident

What was the Supreme Court's rationale in 44 Liquormart v. Rhode Island

Failed 3rd and 4th parts of Hudson test--no evidentiary support that price-advertising ban would advance state interest, and alternative methods would be more likely to meet the state's goal of promoting temperance.

What was the Supreme Court's rationale in Greater New Orleans Broadcasting v. United States

ads truthful, for a legal activity. substantial interest? didn't seem important with state casinos...no proof of direct correlation of ads to gambling problems, not narrowly tailored. Said that speakers and audiences, rather than govt, should be allowed to evaluate accurate and non-misleading info about legal conduct.

What was the Supreme Court's rationale in Lorillard v. Reilley (the tobacco advertising case)

Said the regulations were unconstitutional because they covered too much communication.

What entities are involved in advertising regulation?

FTC and the advertising industry

How many commissioners are on the FTC, and how do they get there?

5, nominated by the president and confirmed by the senate

Can all commissioners be from the same political party?

no

What is the responsibility of the FTC?

responsible for administering a variety of federal statutes that "promote competition and protect the public from unfair and deceptive acts and practices in the advertising and marketing of goods and services"

Where are the regional offices of the FTC, (see footnotes) and what are their responsibilities?

Can advertising agencies, along with their clients, be held legally liable for deceptive ads? How does the FTC define a deceptive ad? What are the four key parts of this definition, and what does each mean?

yes, because they have a responsibility to independently check claims made in ads.
Define deceptive ad as one that contains a representation or omission of info that is material and likely to mislead a consumer acting reasonably under the circumstances, to the consumer's detriment.
1)There must be a representation or omission of info or omission that is likely to mislead
2)The representation or omission must be material
3)The representation or omission must be likely to mislead a reasonable consumer
4)The representation or omission must be likely to cause harm

what the FTC can do in acting against companies that have already run false or deceptive advertising
-Consent agreements
-Cease and desist orders
-Court injunctions
-Civil penalties
-Criminal penalties

Can the FTC regulate advertising and marketing practices on the Internet?

yes

Must advertising on the Internet conform to the same rules as advertising in other media?

yes

What is COPPA and what agency administers it?

Children's Online Privacy Protection Act. FTC.

What four "fair information practices" does the FTC favor to protect adult consumer privacy on the Internet?

-consumer notification of privacy policies
-access to data collected and the ability to correct errors in that data
-choice on how the site uses the data
-security of the info collected

The FTC is working with the Food and Drug Administration (FDA) and other governmental agencies to fight deceptive advertising about what kinds of products?

What three groups from the advertising industry does the text mention as being involved with advertising self-regulation?

National Advertising Division, the National Advertising Review Board, and the Children's Advertising Review Unit.

The main advertising industry group that regulates ads is what? And is a program of what?

The National Advertising Division. A program of the council of BBB.

What is the purpose of NAD?

provide a system of voluntary self-regulation, minimize government intervention and foster public confidence in the credibility of advertising

NAD focuses on truth or accuracy claims, but not on what?

"is not the appropriate forum to address concerns about the 'good taste' of ads, moral questions about products that are offered for sale or political or issue advertising"

From whom does NAD receive complaints, and what courses of action does/can NAD take on those complaints?

any person or organizations, but most are from advertisers, individuals, local BBB and trade associations. Their staff attorneys review disputed claims in ads, collect and evaluate relevant data, and decide whether the claims have been substantiated.

What is NARB, and how does it relate to NAD? What does NARB do if advertisers do not accept their decisions and recommendations?

The National Advertising Review Board. Either an advertiser whose claim in in question or a challenger of an advertising claim may appeal a finding of the NAD to the NARB. It's a group of about 85 ad professionals, sit in panels of 5. If decision not accepted, they refer case to an appropriate law-enforcement agency ie FTC

What organization sponsors CARU?

The advertising industry,BBB

What activities does CARU engage in?

views and analyzes advertising targeting children under the age of 12 by monitoring advertising in broadcast and cable tv, radio, kids magazines, comic books and online services

What seven principles form the foundation of the Self-Regulatory Guidelines for Children's Advertising?

-Advertisers should always take into account the level of knowledge, sophistication and maturity of the audiences to which their messages are primarily directed
-Realizing that children are imaginative and that make-believe play constitutes an important part of the growing up process, advertisers should exercise care not to exploit the imaginative quality of children
-products and content inappropriate for use by children should not be advertised or promoted directly to children
-Recognizing that advertising may play an important part in educating children, advertisers should communicate info in a truthful and accurate manner and in language understandable to children
-Advertisers should capitalize on the potential of advertising to influence behavior by developing advertising that, wherever possible, addresses itself to positive and beneficial social behavior, such as friendship, kindness, honesty, justice, generosity and respect for others
-Care should be taken to incorporate minority and other groups in advertisements in order to present positive and prosocial roles and role models
-Although many influences affect a child's personal and social development, it remains the prime responsibility of parents to provide guidance for children. Advertisers should contribute to this parent-child relationship in a constructive manner

How is commercial speech defined?

an expression that proposes a commercial transaction or expression related solely to the economic interests of the speaker and its audience.

In what ways do corporate entities have many of the same rights and privileges as natural persons under the Constitution?

have the right to publicize their positions about issues the believe to be important--especially political positions--and the corporations may use corporate monies to fund the process. Also the right of self-promotion and the right to make money off their likeness and activities (the right of publicity). Also protected by 5th amendment's protections against double jeopardy.

Do corporations have the right to privacy?

No.

Can corporations be required to testify against themselves and to reveal their corporate records?

Yes

What is caveat emptor?

let the buyer beware

What are time, place, and manner restrictions, and how do they apply to the regulation of speech?

Does the importance of free expression outweigh the social interests furthered by the regulation being proposed.

Public safety, aesthetics and other community concerns may take precedence when courts consider the right to communicate through economic speech.

What should PR practitioners know about lobbying issues and obtaining permits for expressive activity?

Their speech doesn't take precedence over the regulations

What is public relations law?

plain old business law polished with a veneer of first amendment protections.

How does the text define public relations?

the explanation of business or institutional concerns to the public

Was economic expression historically protected by the First Amendment?

no

What did the Supreme Court provide for in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council?

the first amendment protection for truthful marketing of legal products and services

Why did the Supreme Court say corporate speech was protected in First National Bank of Boston v. Bellotti?

the type of speech indispensable to decision-making in a democracy, and no less true bc the speech comes from a corporation rather than an individual

What does the text say was the result of Central Hudson Gas & Electric Corp. v. Public Service Commission?

differentiated between commercial and political advertising and est a 4part test for determining when a commercial claim may be regulated

Why is there a close, symbiotic relationship between business law and public relations law?

because pr involves the marketing of corporate ideas and ideals, as well as the defense of economic actions and transactions

What is a contract?

simply a promise the law will enforce in some way

What must a contract include to be legally binding?

-an offer to do something
-consideration (bargained-for exchange)
-legal detriment in that the person making the promise agrees to do something he or she does not have to do
-acceptance by both parties or mutual assent

Why should all points of a contract be thoroughly understood before either side agrees?

The whole panoply of contract law rests on the principle that one is bound by the contract which he knowingly and voluntarily signs

The law assumes that a contractual agreement has been fully what?

negotiated between its parties

Why can standard form contracts be dangerous?

1)standard form contracts generally provide no opportunity for one party to bargain over terms
2)a party to such contracts with no real opportunity to study the terms may be thus unfamiliar with the provisions of the agreement
3)the bargaining is not between equals, usually the party in the weaker bargaining position may not understand what they're signing

Hold-harmless or indemnification clauses should clearly state what?

the pr practitioner shall not be held responsible for any material approved by the client or corporate officers for public dissemination that results in negative or unwanted publicity or legal action.

A successful challenge to the hold-harmless clause could arise if what?

if one party to the agreement unfairly shifts the burden of responsibility for any act of wrongdoing to the weaker party, wrongly taking advantage of that party

What are no-compete clauses (what do they restrict)?

restrict the employment of the pr practitioner by a company's competitors.

What four requirements generally must be met for no-compete clauses to be enforceable?

1)must be in writing
2)must be part of the contract at the initial time of employment or change in the employee's status and involve consideration or payment
3)must be reasonable in both duration and space
4)must be reasonably necessary to protect the business interests or activities of the employer

Who determines "reasonableness"?

Made by the courts as a matter of law, not a factual determination for the jury

Most debate focuses on which of the four elements (requirements)?

Third

No-compete clauses must not deny the practitioner the right to what?

earn a living

Do courts traditionally disfavor employers or practitioners?

employers

Which party has the burden of proof for "reasonableness"?

employer

Do PR practitioners have a "privileged" relationship with clients?

no in the legal sense

What does a confidentiality agreement forbid?

any sharing of info outside the organization

Merger or integration clauses attest to what?

the contract's being a full and final statement of the agreement between the parties, requiring no additional info to explain or supplement it

What did the Supreme Court rule in 1989 regarding independent contractors or free-lancers? Who owns the copyright to the works they create?

unless an express agreement exists to the contrary, free-lancers own the copyright to the works they create.

Under what conditions does a corporation that has contracted with a public relations practitioner to create a particular campaign project or plan own the finished work under the Copyright Act of 1976?

the co only owns the finished work only if the creator is an employee acting "within the scope of his or her employment" an express agreement that the work is to be considered "work-made-for-hire," a contribution to a collective work as a part of a motion picture or other audio-visual work, as a translation, as a supplementary work, as compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.

Generally, do creators maintain ownership of their campaigns, projects, programs, or plans?

yes

Why should corporations and public relations practitioners carefully agree to the origin and ownership of public relations plans in very specific terms?

because most pr campaings, projects, programs or plans created by free lancers don't fit under the Copyright Act definition of "work-made-for-hire"

Why should a statement of ownership be included on a proposal's title page?

Because prospective clients can easily use part or all of a proposal after having seen it during a presentation

What is the basic rule of thumb for use of consent agreements?

if the use is economic, releases are necessary

Can minors sign such agreements/forms?

No

What does this text say is the bottom line in this area?

Whenever there is any doubt as to the origin of any material to be used in an economic campaign, copies of all consent agreements or releases should be obtained to protect against corporate liability from improper use of the material

What are the three purposes of tort law?

compensation, justice and deterence

What is a tort?

>a result of conduct--by an act of either commission or omission
>that has a detrimental affect on one's legal interest in either person or property
>usually committed with a certain state of mind (such as recklessness or carelessness)
>that causes damage, assuming that consequences were at least "reasonably foreseeable"

With an adequate defense, what must a defendant pay to the injured individual?

at least nominal damages, usually compensatory damages and sometimes punitive damages to the injured individual

What is "passing off"?

similar to misrepresentation in that it involves a business selling or presenting its goods and services in such a way that they appear to be the goods and services of another, allowing the first to benefit from the good reputation of the second. The unfairness lies in the manner in which the first company conducted its business.

What is "malice in trade"?

involve companies overstepping the proper bounds of competition, seeking to drive others out of business through malicious public relations or actions

What was the Supreme Court's decision in International News Service v. Associated Press?

On the grounds that the AP's news stories were "quasi-property" and redistributing w/o authorization denied the AP full value for its news-gathering efforts, leading customers to believe that the news stories in question originated w/ the INS

How does this case apply to public relations?

the presentation of a campaign or program to the public doesn't lessen the monetary value to pr practitioners of their hard work, esp when those efforts are viewed in comparison or competition with the efforts of another co "endeavoring to reap where it has not sown and...appropriating to itself the harvest of those who have sown."

When does a PR practitioner's duty to warn arise most commonly?

in product liability situations, in which the manufacturer of a product could be held liable for failing to warn consumers of dangerous conditions associated with the product

What is the general rule in pr practitioners' responsibility to warn?

for a duty to warn to exist, a product must be dangerous beyond the extent to which a reasonable consumer, with knowledge common to the community as to the product's characteristics, would use it.

Where a warning is given, can a seller assume that it has been read and heeded?

Yes

What is the "common sense" defense?

sellers are generally not required to warn consumers about products or ingredients that are only dangerous or potentially dangerous when consumed in excessive amounts, over an extended period of time, or when the danger is generally known and recognized

What, then, is the "threshold question" in the warning area?

whether the circumstances of a case demand a duty to warn at all, and, then, whether the warning is accurate

What do judges balance in determining the adequacy of directions or warnings?

"the likelihood that the product would cause the harmed complained of, and the seriousness of that harm, against the burden on the manufacturer of providing an adequate warning

What elements are considered in determining adequacy?

-what is stated
-the manner in which it is stated

When federal statute dictates the specific wording of a product's labeling requirements, does federal law preempt state tort law claims?

Yes

What is the core of the tort of misrepresentation?

a person' reliance on a false statement

What does it mean that a statement is "material"?

substantially central to a person's decision to rely on the statement

When might a PR practitioner be liable for fraudulent misrepresentation?

if they know that it is false, his/her intent is to induce people to make decisions based upon the statement, if justifiable reliance results and causes damages

When does negligent misrepresentation occur?

when a pr practitioner makes a false representation of a material fact in their professional capacity, when they fail to use care to determine the statement's truth, and when the practitioner owes a duty to the person who justifiable relied on it, causing damages

Is "nondisclosure" generally grounds for a misrepresentation claim?

No

Third parties, such as PR practitioners, are not generally liable for negligent misrepresentation unless what conditions exist?

1)they know their statements will be used for a particular purpose
2)they know another specific part will rely on their statements
3)they are somehow linked to that party and understand the consequences of that party's reliance on their statements

Public relations practitioners must have a basic understanding of their responsibilities to clients under what?

under corporate speech case law and federal trademark law

The degree of constitutional protection for corporate expression varies depending on what?

depending on the the type of expression

Are corporations artificial persons under the Constitution, entitled to First Amendment protections?

didn't believe were a form of direct expression, as long as the regulation was "closely draw" and matched a "sufficiently important [governmental] interest

What was the intent of the Bipartisan Campaign Reform Act of 2002?

settle questions regarding the role of corporations in public life, their influence on the democratic process, an their involvement in the political sphere through "soft money" assistance to political parties

(Nike case) Still, according to the text, the U.S. Supreme Court has left no doubt about what? False or misleading corporation expression is considered by the U.S. Supreme Court to be what? (p. 194) Does it have First Amendment protection?

materially false or misleading corporate expression of an affirmative nature, knowingly designed to mislead consumers, is fraudulent and has no First Amendment protection whatsoever

What may be protected by the Lanham Act of 1946?

words or designs, or a combo of the two, that denote a specific product, service or co may be protected by the Lanham Act of 1946

What are the basic federal requirements for a trademark or service mark?

that it be distinctive, though it also must not be scandalous or deceptive, consist of a flag or emblem of any country, resemble a person's signature or likeness w/o consent

Once registered with the U.S. Patent and Trademark Office, how long does a mark last and what must be done?

good fr ten years and may be renewed for unlimited ten-year periods, as long as it is used regularly in commerce

range of trademark protection

Most--
-fanciful
-arbitrary
-suggestive
-descriptive
-generic
--Least

fanciful mark

coined words or designs with no dictionary meeting, such as "Exxon"

arbitrary mark

Commonplace words or symbols that do not describe the product or co with which they're associated, such as "Apple" computers

suggestive mark

familiar words or phrases that are used to suggest what the product or service really is (ie Nickelodeon)

descriptive mark

actually describe the thing or co, such as Personal Finance, a financial investment magazine

generic mark

the names of the product or service itself and cannot function as trademarks, such as asprin

Why are corporations constantly on the look-out for public misuse of their marks?

to prevent "generecide"--the killing of trademarks by common or generic use

What does it mean to conduct a trademark search, and why is it prudent?

in order to determine if a similar logo or co name is already in use by a co in a similar line of business. Failure to do so could expose the co or pr person to a lawsuit seeking to prevent the use of the logo or mark, even though it is already in use and developing business and goodwill for the co, in addition to a tort claim for unfair competition.

How does administrative law differ from other types of law?

it is not based on the separation of powers, in which the legislative branch of govt makes the law, exec enforces, judicial interps. In est administrative agencies that promulgate rules, regulations and guidelines, congress and the states, in essence, called upon experts to administer a new type of law.

Why does the text say "it is almost impossible to beat administrative agencies at their own game"?

each agency makes its own regulations, enforces them and provides initial judicial review

Must a PR practitioner disclose his or her disbelief as to the reality of a situation if he or she does not have factual evidence to support that disbelief?

no

What kinds of commercial speech must be approved by the FDA?

all press releases, advertising, package inserts or other promotional copy about medical devices and prescription and nonprescription drugs

What does the FTC control, and how does it differ from what the FDA controls?

the contents ofbook, magazine or non-label advertising of food and drug products, and evaluates them under a "truthful and not misleading" standard

The FTC has the authority to do what?

define and control unfair practices in the marketplace, though primarily after the fact

The FTC has the power to ban what?

types of promotional claims be altered so they are no no longer improper

Can the FTC order that advertisers alter their product claims?

yes

When is publicity considered to be deceptive

1) it is likely to deceive
2) a reasonable consumer
3) with an omission or material representation of fact so significant that it has the capacity to affect a decision to purchase or to act on its recommendation

Does a claim have to actually deceive someone to be improper? If not, what is the standard?

taken as a whole, it only has to be likely to or have a tendency or capacity to mislead, regardless of the businessperson's intent, a good # of the target public

How does the FTC determine the likelihood of deception?

relies on expert testimony and the results of consumer surveys to assess the likelihood of deception

Are deceptive practices limited to advertising and marketing? What other examples does the text provide?

No--online surveys

Where should you send any deceptive spam you receive?

uce@ftc.gov

What is unfairness?

it is the extent to which a practice offends public policy, is immoral or unethical, or causes substantial injury to consumers or businesses

The FTC has generally narrowed the focus of its unfairness inquiries to what?

to examine whether marketing practices cause substantial injury that is not outweighed by by offsetting benefits to consumers or competitors who cannot reasonably avoid the injury

Do the states also have unfair competition laws?

yes

A few simple practices can help corporations avoid what?

misunderstanding and lawsuits

Why is it a good idea to tape record interviews with journalists?

deliberate misquoting that materially changes the meaning of what was said can be the legal equivalent of actual malice

What will you be able to prove if you are misquoted?

actually malice

What must you be very careful not to violate if you are tape recording an interview?

state privacy laws

What does the text advise in the careful pr section?

should never do or say anything they do not want disseminated by the media

Why should you clarify expectations before talking with the media?

the rules for off-the-record remarks are difficult to understand because they are almost always unwritten

What is the usual meaning of "on the record," "for background," "for deep background" and "off the record"?

on the record: every comment made by a corporate employee may be attributed to the employee through either direct quotations or paraphrases
for background: the corporate employee may be quoted directly, but his or her name may not be used
for deep background: the info may be used but may not be attributed to the individual
off the record: the journalist may not use the info

Is a journalist's verbal promise of confidentiality enforceable?

yes, under the principle of promissory estoppel, if justifiably relied upon by the prson to whom the promise is made

What does the text suggest you should have the journalist repeat?

the confidentiality agreement and to use the word "promise"

Why would a tape recording be helpful as to promises of confidentiality?

in case the promise of confidentiality is broken

How does the text define public relations, and what does it involve?

the explanation of business or institutional concerns to the public

How has PR law been described? Is it really an area of law?

plain, old business law polished with a veneer of 1st amendment protections

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